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A closer look at the accessibility standard for employment under the AODA

accessibilityNow that the Integrated Accessibility Regulation under the Accessibility for Ontarians with Disabilities Act is law, and will come into force on July 1, 2011, let’s take a closer look at the accessibility standard for employment.

Generally speaking, to meet their obligations under the law, employers will have to develop an organizational accessible employment policy statement. Employers will also be required to develop, adopt, document and maintain policies that support the implementation of the commitments in the policy statement.

Specifically, organizations with employees (not volunteers or other non-paid individuals) will have to comply starting January 1, 2012, by providing their employees with disabilities with emergency response information that is tailored to the employee’s needs, if the disability requires it.

Requirements that affect the following areas will be phased in between 2012 and 2017 as follows:

  • The Government of Ontario and the Legislative Assembly, January 1, 2013
  • Large designated public sector organizations, January 1, 2014
  • Small designated public sector organizations, January 1, 2015
  • Large organizations (50 or more employees), January 1, 2016
  • Small organizations (at least one but fewer than 50 employees), January 1, 2017

Recruitment

Employers must:

  • Notify their employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes
  • Notify job applicants, when they are individually selected to participate in an assessment or selection process, that accommodations are available upon request in relation to the materials or processes to be used
  • If an applicant requests an accommodation, consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicant’s accessibility needs due to disability
  • When making an offer of employment, notify the successful applicant of their policies for accommodating employees with disabilities

During employment

Employers must:

  • As soon as practicable after they begin employment, inform their employees of their policies used to support their employees with disabilities, including, but not limited to, policies on the provision of job accommodations that take into account an employee’s accessibility needs due to disability
  • Update their employees whenever there is a change to existing policies on the provision of job accommodations that take into account an employee’s accessibility needs due to disability
  • Where an employee with a disability so requests it, consult with the employee to provide or arrange for accessible formats and communication supports for information that is needed in order to perform the employee’s job, and information that is generally available to employees in the workplace
  • Provide workplace emergency response information to the person designated to provide assistance to employees (if the employees require assistance and if the employees consent)
  • Review the individualized workplace emergency response information when an employee moves to a different location in the organization, when reviewing an employee’s overall accommodation needs or plans, and whenever employers review their general emergency response policies
  • Make individual accommodation plans that, if requested, include any information regarding accessible formats and communications supports available; include individualized workplace emergency response information; and identify any other accommodation that is to be provided
  • Prepare and have in place a written process for the development of documented individual accommodation plans for employees with disabilities (unless the employer is a small organization)

This written process includes:

  • The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan
  • The means by which the employee is assessed on an individual basis
  • The manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, how accommodation can be achieved
  • The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan
  • The steps taken to protect the privacy of the employee’s personal information
  • The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done
  • If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee
  • The means of providing the individual accommodation plan in a format that takes into account the employee’s accessibility needs due to disability

Return to work

(This requirement does not replace or override any other return-to-work process created by or under any other statute.)

Employers (other than employers of a small organization) must do the following:

  • Develop and have in place a return-to-work process for employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work
  • Ensure the return-to-work process outlines the steps the employer will take to facilitate the return to work of employees who were absent because their disability required it, and uses documented individual accommodation plans as part of the process
  • Document the return-to-work process, and use documented individual accommodation plans

Performance management

“Performance management” means activities related to assessing and improving employee performance, productivity and effectiveness, with the goal of facilitating employee success.

Employers that use performance management must take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans.

Career development and advancement

“Career development and advancement” includes providing additional responsibilities within an employee’s current position and the movement of an employee from one job to another in an organization that may be higher in pay, provide greater responsibility or be at a higher level in the organization or any combination of them and, for both additional responsibilities and employee movement, is usually based on merit or seniority, or a combination of them.

Employers that provide career development and advancement to their employees must take into account the accessibility needs of their employees with disabilities as well as any individual accommodation plans.

Redeployment

“Redeployment” means the reassignment of employees to other departments or jobs within the organization as an alternative to layoff, when a particular job or department has been eliminated by the organization.

Employers that use redeployment must take into account the accessibility needs of their employees with disabilities, as well as individual accommodation plans.

What do you think?

Do you believe that these requirements will be too onerous for employers? Do you think that most employers do these things already? Are the requirements really a step in the right direction?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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4 thoughts on “A closer look at the accessibility standard for employment under the AODA
  • Businesses with fewer than 20 employees must comply with the standard, but are not required to file annual reports confirming compliance. That does not mean there will not be any enforcement for businesses with fewer than 20 employees.

    There is no confusion about enforcement under the AODA…

    For organizations that persist in not meeting their obligations, the government, meaning the Ministry of Community and Social Services and the Accessibility Directorate of Ontario, have the power to enforce the standards, have the power to conduct inspections, assign monetary penalties and prosecute through the courts.

    The Licence Appeal Tribunal will hear appeals from organizations on compliance matters following an order from the director. The tribunal will not hear complaints from individuals. A person who feels that their human rights have not been met will still need to direct their complaints to the Human Rights Tribunal of Ontario.

  • Thanks for your comments Adam and Derrick.

    The reports referred to are likely those required in sections 14 and 17:

    Accessibility report

    14. (1) A person or organization to whom an accessibility standard applies shall file an accessibility report with a director annually or at such other times as the director may specify. 2005, c. 11, s. 14 (1).

    Other reports and information

    17. At the request of a director, a person or organization shall provide the director with reports or information relating to the compliance of the person or organization with the accessibility standards. 2005, c. 11, s. 17.

    Also, section 21(3) states:

    Compliance order, reporting requirements

    (3) If a director concludes that a person or organization has contravened section 14 or 17, the director may, by order, require the person or organization to do any or all of the following:

    1. File an accessibility report that complies with the requirements under this Act within the time specified in the order.

    2. Provide the director with such reports or information as may be required under section 17 within the time specified in the order.

    3. Subject to subsection (6), pay an administrative penalty in accordance with the regulations. 2005, c. 11, s. 21 (3).

    Though the provisions have the potential of becoming “do-nothing laws”, the first step in the right direction involves legislating broad human rights principles. There are some enforcement provisions included in the Act – hopefully this is a step in the right direction…

    thanks
    Christina

  • Adam Gorley says:

    Derrick, what do you mean, “95% of private sector orgs will be exempt from reports”?

    I’m not sure the Accessibility Directorate is supposed to receive complaints. It exists to implement the law, not enforce it.

    The Licence Appeals Tribunal and other bodies will receive complaints and enforce the law, if I understand correctly.

    It does seem that the enforcement process is not completely clear at the moment. Not surprisingly, the government appears to prefer working with business to achieve compliance rather than simply imposing fines and penalties.

  • Derrick Fanbridge says:

    The AODA is a do nothing law. What’s in the Employment Standard is already required under the OHRC, Federal Employment Equity Act, she ODA.

    What’s worse is that there is essentially no enforcement when you consider that 95% of private sector organizations will be exempt from reports with reporting being a gauge of non-compliance.

    Moreover, there is no language or mechanism that enables people with disabilities to submit complaints to the Accessibility Directorate nor is there language or a mechanism that gives authority for them to act if they do receive complaints from the community.

    Again, it’s a do nothing law and gives the appearance of do something but only to those with rose coloured glasses.